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Patent Attorney Axel H Horns' Blog on Intellectual Property Law.

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Friday, July 28, 2006

Red Hat, Inc., Agreed to Become a Lead Sponsor of and Participant in the Community Patent Review Initiative.

"[...] Red Hat, Inc., the world's leading provider of Linux and open-source software, has agreed to become a lead sponsor of and participant in the Community Patent Review Initiative, which will be launched in partnership with the United States Patent and Trademark Office to streamline and improve the review process for patent applications. [...]"

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EU IP Enforcement Directive: More Background Information.

"[...] In the justification for the proposal the Commission i.a. has stated that infringements of intellectual property were a constantly growing phenomenon with an international dimension, since they were a serious threat to national economies and governments. The isparities between the national systems of penalties, apart from hampering the proper functioning of the internal market, would make it difficult to combat counterfeiting and piracy effectively. In addition to the economic and social consequences, counterfeiting and piracy would also pose problems for consumer protection, whereas increasing use of the Internet would enable pirated products to be distributed instantly around the globe. Finally, this phenomenon appeared to be increasingly linked to organised crime.

Since counterfeiting and pirating had become lucrative activities in the same way as other large-scale criminal activities such as drug trafficking. There were high potential profits to be made without risk of serious legal penalties. Additional provisions to strengthen and improve the fight against counterfeiting and piracy were therefore necessary to supplement Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights. In addition to the civil and administrative measures, procedures and remedies provided for therein, criminal penalties would also constitute, in appropriate cases, a means of enforcing intellectual property rights1. With the entry into force of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), concluded on 15 April 1994 and signed by all the members of the World Trade Organisation, which lays down minimum provisions on means of enforcing trade-related intellectual property rights, according to the Commission only start was made on harmonisation.

Although the agreement includes the implementation of criminal law measures, there were still major disparities in the legal situation in the Community which would not allow the holders of intellectual property rights to benefit from an equivalent level of protection throughout the Community. Regarding criminal penalties, there still were considerable differences. [...]

During the discussions in the Working Party, however, concerns have been raised with respect to the (immediate) need for (further) criminal measures against the violation of intellectual property rights.

One of those concerns directly related to the time-frame for assessment of the effectiveness of the Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights provided by its Articles 18 and 20. According to Article 20 of this Directive the time-limit for bringing into force the laws, regulations and administrative provisions necessary to comply with this Directive has ended only very recently, on 29 April 2006. Three years after that date - according to Article 18 paragraph 1 - each Member State shall submit to the Commission a report on the implementation of this Directive. On the basis of those reports, the Commission shall draw up a report on the application of this Directive, including an assessment of the effectiveness of the measures taken, as well as an evaluation of its impact on innovation and the development of the information society.

That report shall then be transmitted to the European Parliament, the Council and the European Economic and Social Committee. It shall be accompanied, if necessary and in the light of developments in the Community legal order, by proposals for amendments to this Directive. Consequently, at least one delegation considered it premature to enter into discussions about (future) criminal measures now, from this point of view.

One must concede, however, that the 2004 Directive, while explicitly stating that it should not affect neither Member States' international obligations and notably the TRIPS Agreement, including those relating to criminal procedures and penalties, nor any national provisions in Member States relating to criminal procedures or penalties in respect of infringement of intellectual property rights1, in fact already has acknowledged in its recital 28 that in addition to the civil and administrative measures, procedures and remedies provided for under this Directive, criminal sanctions also constitute, in appropriate cases, a means of ensuring the enforcement of intellectual property rights.

Whereas the scope of the 2004 Directive itself stretches to any infringement of intellectual property rights as provided for by Community law and/or by the national law of the Member State concerned (cf. its Article 2 paragraph 1) criminal sanctions, therefore, could or should be reserved to 'appropriate cases'.

The amended proposal for the Directive seems to have found these 'appropriate' cases by limiting the definition of offences (Article 3) to 'intentional infringements of an intellectual property right on a commercial scale'. [...]

IV. FUTURE QUESTIONS

• Does the Council share the Commission's view of the need for further criminal measures to protect intellectual property rights?
• Should the outcome of case C-440/05 Commission v Council, currently pending before the Court of Justice, and/or the evaluation process of Directive 2004/48/EC be waited for?
• If the discussions should be continued now, should this be done on the basis of the amended proposal for a Directive or with a view to a reduction of the scope of this proposal, in particular as regards intellectual property rights not yet harmonised?"

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UK: Prospect CIPA Members Being Eligible to Apply for Some Judicial Roles.

"[...] The presidents of the Institutes representing patent and trade mark attorneys have welcomed the prospect of their members being eligible to apply for some judicial roles under the terms of the draft Tribunals, Courts and Enforcement Bill. [...]"

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EPO Doing Basic Research (again cont'd.).

"[...] IPW: You talked about technical assistance, which you said was not being sufficiently provided to or used by developing countries. What is the reason for this?

KARACHALIOS: I think that the positive aspects of the system are still not used by the ones that need them most urgently. One of the reasons is that the demanding side - the developing countries - do not yet have the right tools and capacities to make full use of the system. This is what technical assistance should focus on and this is what we have been trying to do for several years. What is urgently needed is a coordination of donors also regarding IP, a coordination already achieved in other fields, for example the Organisation for Economic Co-operation and Development's [OECD] integrated frameworks for free trade related technical assistance.

IPW: Do you think the European and the global IP system in general would be ready to change - is it possible for the people in the system to think out of the box?

KARACHALIOS: Not every fish likes jumping out of the water. On the other hand, it was the amphibians that opened new spaces for life in earth's early days. There is an interesting theory that they had to do so because they were losing the battle in the water, so they had to search for alternatives. So, sometimes it is the losers, not the winners that kick off major change and evolution.

In our case, I think that we will all have to work hard to face the widespread perceptions in society, and partly in politics, and we may also need to question in depth some basic assumptions and leading paradigms.

[...]

KARACHALIOS: There is a widespread perception that the system is coming under stress. In the US it is very apparent, there is a lot of very vivid debate there, and this [spills] also over to Europe. There are two main symptoms: One is the increasing backlog, the patent offices face increased difficulties to cope with the numbers of applications. Apparently the system has been very attractive and successful, so an increasing number of people wish to use it. But this poses questions. Is the experienced geometrical growth sustainable and if yes, how can we cope with it? To give you an example: based on the situation and the predictions at its creation period, the EPO was conceived to become in the long term an organisation with some 2,500 persons, dealing with a maximum of 40,000 applications a year. Not even 30 years after, we are 6,500 persons and receive 200,000 applications a year, trends upwards. You see here that predictions and extrapolations based on solid experience and common sense do not always deliver realistic results.

IPW: Is this what people call 'patent inflation'?

KARACHALIOS: Yes and no. First of all, within Europe, a new market was created, which did not exist before. This was not taken fully into account when introducing a new, regional system. On the other hand, internationally seen, there are new technological fields to which the patent system is extended [such as] bio-, nano-, cogno-technology, and other innovative fields like business methods, semantic web-related inventions [and] plant varieties which were thought not to belong to the patent regime. Also the fields of 'small grained' technical improvements, which could be seen to belong to the category of 'sub-patentable innovation' exert considerable pressure onto the patent system, mainly because there seem not to exist satisfactory systems to reward creators in all these fields. So, the patents paradigm, precisely because it has been historically so successful, is extended to cover all these fields.

So numbers are growing for different reasons and we have to understand them and design a strategy for Europe. We wish to contribute to this, since we are a genuine European organisation, although not a body of the European Union or Commission. As we look for our position within Europe and the role of Europe within the world, we need to look strategically into the future. [...]"

"[...] Future of the system: Views ranged from denial, i.e. that possible threats were an 'incorrect perception' in one group to agreement that system would undoubtedly change in another. [...]"

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Thursday, July 27, 2006

New Paper on UK Patent Office E-Business Strategy.

"[...]

1.1 The Vision of the UK Patent Office is to create an Intellectual Property (IP) system that maximises creativity, innovation and competition. Our Mission is to stimulate innovation and enhance the international competitiveness of British industry and commerce. We offer customers an accessible, high quality, value for money system both national and international, for granting IP rights. We develop staff to meet this mission. The Office's e-business vision is to offer customers effective and attractive electronic service options.

1.2 The objective of e-business in IP is to provide improved service delivery, stimulate efficiencies and cost savings for administrations and users alike, reduce the cost of service provision and the fees and charges which can be a barrier to small and medium-sized enterprises (SMEs) in making full use of the IP system.

1.3 The major elements of our strategic plan are:

• the electronic delivery of services to customers, including state of the art settlement and payment systems;
• improving access to IP information;
• increasing availability of search tools;
• co-operation with European IP organisations; and
• sharing services with other parts of UK Government.

1.4 The costs involved in implementing this strategy will be substantial but the benefits to customers, the furthering of policy objectives for creation, innovation and competition, with particular emphasis on small businesses, and efficiency and effectiveness improvements for the office will all be considerable.

1.5 We want to make the most of commercial off-the-shelf (COTS) software, systems developed by other IP offices and UK government and minimise of the need for large scale bespoke developments. The rapid applications development approach will be used for systems meeting the suitability criteria for applications development.

1.6 Our aim is to have a coherent and flexible technical infrastructure across all areas of the Office which is easy to maintain and allows us to deploy systems developed by other IP administrations, particularly the European Patent Office (EPO). Investment in information technology is justified on the basis of business need
and the benefits to our customers and ourselves.

1.7 The Office has already made good progress in delivering e-business services. [...]"

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Draft GPLv3 - Second Version - Published.

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U.S. Mooting Disciplinary Actions Against Patent Attorneys Fighting for the Rights of Their Clients.

• Duty to make reasonable inquiry;
• Obligation to avoid submitting papers for improper purpose or delay;
• Monitoring compliance - conduct that can be perceived as failure to make reasonable inquiry;
• Monitoring compliance - conduct that can be perceived as being interposed for improper purpose or delay; and
• Monitoring compliance - conduct that can be perceived as incompetence or neglect.

• Practitioners submitting papers must read each paper submitted to the Office before it is submitted. Each submitted paper must be read in its entirety;
• Causing unnecessary delay or needless increase in the cost of prosecution;
• A reference material to patentability is buried among a large number of cumulative references;
• Application filed with claims that are anticipated by at least one publication authored by one of the inventors executing the 37 CFR 1.63 declaration or oath;
• Filing application with one or more claims unpatentable over a combination prior art references cited by applicant in the specification;
• Issuance of patent to claimed subject matter would cause embarrassment to the Office and bring the patent system into disrepute;
• A reference material to patentability is buried among a large number of cumulative references;
• Adding undue number of claims with multiple dependent claims;
• Filing an amendment, petition or other paper without required fee;
• Coinventing and claiming the client's invention as the practitioner's own invention;
• Improving on a client's invention;
• Repeatedly submitting payments by check, credit card or electronic fund transfer, which is dishonored due to insufficient funds, stop payments, incorrect accounts, etc.;
• Authorizations in patent or trademark cases to charge the deposit account are not honored;
• Repeated issuance of bad checks;
• Stopping payment of check and receiving the service;
• Repeatedly submitting petitions that clearly have no legal merit;
• Repeatedly making the same or similar mistakes that delay prosecution or issuance of patent; and/or
• drafting claims that read on prior art cited by individuals associated with preparing or prosecuting patent application.

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Sunday, July 23, 2006

GPLv3: Mr. Stallman's Hubris.

"[...] We released the first discussion draft in January after several months of working together on the text, and, we also designed a careful plan for how to request and then study and act on the feedback from various parts of our community. Various kinds of users and contributors. We did not decide to let the community decide what goes into GPL version 3. There is a fundamental reason for this. Because Free Software is very often attractive for purely practical reasons, we have collected tens of millions of users who choose Free Software purely for practical benefits and do not appreciate the freedom that we have given them. These are the kind of people that assume that you should choose between Free Software and proprietary software based on practical convenience, which is another way of saying that they value freedom at zero. How sad. How can freedom ever be safe, when people don't appreciate it. People have had to fight for freedom, over and over.

And when people do not value their freedom, they are very likely to lose it. But that's the fact. Most of our community does not appreciate freedom. Most of the World, lets go of vital freedoms whenever some crooked politician tells them "I'm going to protect you from terrorists, give up your freedom, let me protect you."

So, if we wanted to do a good job of protecting freedom with version 3 of the GNU GPL, we could not let the majority of our users decide what goes into that licence, but we need to listen to what they have to say because there are lots of potential problems and we're not smart enough to see them all. [...]"

"[...] This is the language of religion, and of politics as religion, not of economic calculation. It is Savonorola, kindling a Bonfire of the Commercial Vanities. Seeking commonality here is sort of like suggesting that the inquisitors and the heretics just need to talk out their differences.

It is the language of non-compromise. If the commercial users have problems with the proposed changes, that is just tough. They will be made free, damn it! So even if Stallman were talked out of his intentions for this round, what about GPLv4 or v5? The GPL contains a phrase whereby someone using covered software also agrees automatically to be bound by any later version of the license. It is hard to imagine these commercially-savvy companies going further down this road.

On the other hand, powerful internal corporate forces are at work to minimize any problem. Few of the staffers in large companies who told their top management to ride the GPL horse are likely to send up a memo saying "Oops!" Better to hunker down and hope it works out.

This may account for the lack of discussion of what seem to be some exceedingly important issues. The FSF has no interest in telling the commercial allies that they are in trouble, and the commercial entities have no interest in admitting that there is any problem, especially to their own managers. If it is indeed a train wreck, it may come in very slow motion. [...]"

"[...] Anyone with an idea was able to implement it. Vast corporate holdings were powerless to stop individual inventors. [...]"

"[...] We like to think of ourselves as 'enlightened capitalists'. Remove the competitive aspects of capitalism, and you're left with a utopian corporate vision of the future. [...]"

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Wednesday, July 19, 2006

E-Business at OHIM.

"[...] The Office is having a continued strong focus on the development of its e-business solutions. As of the date of the Users' Group meeting e-payment and e-opposition filing (of the opposition form with exhibits) are available, and the Office has a substantial number of both improvements to existing services and new services in the pipeline.

The NGOs argued that some e-business solutions, such as e-filing, seem to have been developed with the individual user and not the professional user (whether in private practice or in industry) in mind. Use of the e-filing service by professional users, thus seem to be driven rather by the reduced fee for e-filing than by an improved efficiency as compared to paper filing.

On this basis, the NGOs prompted the Office to accelerate the development of a B2B e-filing service, which has been in the pipeline for quite some time.

The Office informed that it has defined a so-called TMXML standard for B2B e-filing the technical details of which are available on its website. B2B e-filing is thus available, and the Office is further working with a number of IPR software solution providers (Patrix, Dennemeyer and CPA Software Solutions) to develop integrated B2B e-filing solutions in the systems of the providers.

Such solutions are in test but have proven difficult to develop, and the Office urged the users to persuade their IPR software solution providers to give priority to the development of these solutions. [...]"

(German filings - Source: Alicante News)

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Tuesday, July 18, 2006

U.S.-PTO Really Making Radical Changes of Rules to Enter into Force by January 01, 2007?

"[...] The revised rules would require that second or subsequent continued examination filings, whether a continuation application, a continuation-in-part application, or a request for continued examination, be supported by a showing as to why the amendment, argument, or evidence presented could not have been previously submitted.

Thus, under such rules, you'll likely only get ONE continuing application per filing. ONE!

Word on the street (via Hal Wegner) is that a USPTO Deputy Director announced today that the rules will likely be effective January 2007.

I estimate that MOST patent attorneys and their clients are opposed to this rule, yet most likely do not know that it is even coming.

Other than discussions by a few patent bloggers ... no one is really talking about this issue. Who speaks for patent attorneys? Where is the opposition? Who is raising the red flag? In a nutshell ... no one.

Unless patent attorneys and/or their organizational representatives (AIPLA, ABA, etc.) get their acts together and speak up ... these changes are going to be a done deal and you can kiss continuation practice goodbye. [...]"

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Is EU Community Patent Virtually Dead?

"BRUSSELS - A majority of the 400 selected participants at a recent European Commission hearing on the future patent policy in Europe called for more centralisation - in the form of a single patent system or a common litigation system - but not at any cost.

A number of the speakers, whose representation was heavy on the industry and patent attorney side, said there is a need for a European Community patent, which could mean that a patent issued anywhere within the Community would apply to all.

Some industry representatives doubted the viability of a Community patent, particularly a 'common political approach' drafted in 2003 by the European Union members. Since then, some members have taken issue with far-reaching language requirements and the role it would give to national patent offices.

But the industry representatives suggested moving ahead with a European arbitration system, in the form of the European Patent Litigation Agreement (EPLA). EPLA was agreed to in a draft agreement drawn up by the European Patent Office (EPO) on behalf of a working group with the latest version dated 16 February 2004. It has never been adopted or ratified.

A large number of speakers called for swift ratification of the London Protocol of 17 October 2000, which aims to create a 'cost-attractive' post-grant translation regime for European patents, according to the EPO. But this is now in the hands of the French government, which opposes it, one participant said.

But there were also industry speakers, including from Nokia and Merck, who cautioned against centralisation of the patent system and said it should not be set up at the expense of the quality of patents, which they said was very good in Europe.

Others, such as the Association for Competitive Technology and Eurochambers, preferred arbitration and mediation to setting up a new court, and said this model was working well at the World Intellectual Property Organization.

Yet other groups, including the European Committee for Interoperable Systems, firmly opposed a Community patent as well as an arbitration system, saying that overprotection is not an incentive for innovation, and argued that the public interest should be respected. [...]"

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Monday, July 17, 2006

ECJ on Interpretation of Art. 16 of the Brussels Convention.

"[...] GAT and LuK, companies established in Germany, are economic operators competing in the field of motor vehicle technology.

GAT made an offer to a motor vehicle manufacturer, also established in Germany, with a view to winning a contract to supply mechanical damper springs. LuK alleged that the spring which was the subject of GAT's proposal infringed two French patents of which LuK was the proprietor.

GAT brought a declaratory action before the Landgericht Düsseldorf (Regional Court Düsseldorf) to establish that it was not in breach of the patents, maintaining that its products did not infringe the rights under the French patents owned by LuK and further, that those patents were either void or invalid.

The Landgericht Düsseldorf considered that it had international jurisdiction to adjudicate upon the action relating to the alleged infringement of the rights deriving from the French patents. It considered that it also had jurisdiction to adjudicate upon the plea as to the alleged nullity of those patents. The Landgericht dismissed the action brought by GAT, holding that the patents at issue satisfied the requirements of patentability.

On appeal by GAT, the Oberlandesgericht (Higher Regional Court) Düsseldorf decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

'Should Article 16(4) of the Convention ... be interpreted as meaning that the exclusive jurisdiction conferred by that provision on the courts of the Contracting State in which the deposit or registration of a patent has been applied for, has taken place or is deemed to have taken place under the terms of an international convention only applies if proceedings (with erga omnes effect) are brought to declare the patent invalid or are proceedings concerned with the validity of patents within the meaning of the aforementioned provision where the defendant in a patent infringement action or the claimant in a declaratory action to establish that a patent is not infringed pleads that the patent is invalid or void and that there is also no patent infringement for that reason, irrespective of whether the court seised of the proceedings considers the plea in objection to be substantiated or unsubstantiated and of when the plea in objection is raised in the course of proceedings?' [...]"

"[...] Article 16(4) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as last amended by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, is to be interpreted as meaning that the rule of exclusive jurisdiction laid down therein concerns all proceedings relating to the registration or validity of a patent, irrespective of whether the issue is raised by way of an action or a plea in objection. [...]"

"[...] Plans for a unified European patent court have received a major boost, with the European Commission (EC) effectively giving the green light to proposals it has opposed for almost a decade. [...]

In a related move, on 13 July the European Court of Justice handed down two judgments, ruling that cross-border injunctions are not available in patent infringement cases.

The court's decisions in the cases of GAT v LuK and Roche v Primus were central to the debate, and could potentially have negated the point of all further discussions on the community patent if the judges had ruled that the existing system allowed one state's court to enforce decisions beyond its borders. [...]"

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ECJ on Interpretation of Art. 6 of the Brussels Convention.

"[...] Drs Primus and Goldenberg, who are domiciled in the United States of America, are the proprietors of European patent No 131 627.

On 24 March 1997, they brought an action before the Rechtbank te s'-Gravenhage against Roche Nederland BV, a company established in the Netherlands, and eight other companies in the Roche group established in the United States of America, Belgium, Germany, France, the United Kingdom, Switzerland, Austria and Sweden ('Roche and Others'). The applicants claimed that those companies had all infringed the rights conferred on them by the patent of which they are the proprietors. That alleged infringement consisted in the placing on the market of immuno-assay kits in countries where the defendants are established.

The companies in the Roche group not established in the Netherlands contested the jurisdiction of the Netherlands' courts. As regards the substance, they based their arguments on the absence of infringement and the invalidity of the patent in question.

By judgment of 1 October 1997, the Rechtbank te s'-Gravenhage declared that it had jurisdiction and dismissed the applications of Drs Primus and Goldenberg. On appeal, the Gerechtshof te s'-Gravenhage (Regional Court of Appeal) set aside the judgment and, inter alia, prohibited Roche and Others from infringing the rights attached to the patent in question in all the countries designated in it.

The Hoge Raad (Supreme Court), hearing an appeal on a point of law, decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

'Is there a connection, as required for the application of Article 6(1) of the Brussels Convention, between a patent infringement action brought by a holder of a European patent against a defendant having its registered office in the State of the court in which the proceedings are brought, on the one hand, and against various defendants having their registered offices in Contracting States other than that of the State of the court in which the proceedings are brought, on the other hand, who, according to the patent holder, are infringing that patent in one or more other Contracting States?
(2) If the answer to Question 1 is not or not unreservedly in the affirmative, in what circumstances is such a connection deemed to exist, and is it relevant in this context whether, for example,
- the defendants form part of one and the same group of companies?
- the defendants are acting together on the basis of a common policy, and if so is the place from which that policy originates relevant?
- the alleged infringing acts of the various defendants are the same or virtually the same?' [...]"

"[...] Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended most recently by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, must be interpreted as meaning that it does not apply in European patent infringement proceedings involving a number of companies established in various Contracting States in respect of acts committed in one or more of those States even where those companies, which belong to the same group, may have acted in an identical or similar manner in accordance with a common policy elaborated by one of them. [...]"

"A person domiciled in a Contracting State may also be sued:

1. where he is one of a number of defendants, in the courts for the place where any one of them is domiciled;
2. as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;
3. on a counter-claim arising from the same contract or facts on which the original claimwas based, in the court in which the original claim is pending;
4. in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem in immovable property, in the court of the Contracting State in which the property is situated."

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Saturday, July 15, 2006

Microsoft Joining Peer To Peer Patent Project.

"[...] Microsoft has agreed to become a lead sponsor and participant in the Community Patent Review Initiative that will be launched in partnership with the USPTO to streamline and improve the patent application review process. Joining IBM as the second major corporation to provide funding and active support for this innovative pilot project, Microsoft has consented to allow some of its published patent applications to be peer reviewed during the community peer review pilot. This will allow third parties to submit prior art and commentary explaining the relevance of the prior art they provide to the patent office. [...]"

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Friday, July 14, 2006

UK: CIPA Favours English-Only Language Regime for European Patents.

"[...] At a hearing on future patent policy in Europe held by the EU Commission on Wednesday, 12 July, the Community Patent, which had been written off by many, once again raised its head, perhaps for the last time.

At the hearing MEP Giuseppe Gargani revealed a controversial solution proposed by the European Parliamentary Committee examining the Community Patent. The Committee suggested a single language Community Patent, the language being English. Gwilym Roberts, who attended the consultation on behalf of The Chartered Institute of Patent Attorneys (CIPA) said

'Many users of the system have observed that multiple translations are simply not necessary and that the cost outweighs the benefits of unitary protection. If those users are right then this solution put forward by the European Parliament will provide a useful and extremely cost-effective route to pan-European patent protection. It would also be in line with the Commission's goal of setting up a world-leading intellectual property rights regime across the EU. However, the proposal is likely to meet with significant resistance both from national governments and from service providers who feel that translation of the Community Patent is a necessity.' [...]"

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REUTERS: London Agreement Soon to be Ratified by France?

"[...] BRUSSELS, July 13 (Reuters) - France could break a stalemate over protecting inventions in the European Union as it is set to ratify a deal slashing patent translation costs for companies, a top industry official said on Thursday.

Alain Pompidou, president of the European Patent Office, said France favoured ratifying the London Protocol, an agreement among governments allowing patents to be filed in English, German or French, cutting translation costs by about half.

'I see ratification before the (May 2007) elections by France,' Pompidou told reporters. [...]"

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Wednesday, July 12, 2006

EPO Statements on Future Patent Policy in Europe.

• The intervention of Professor Alain Pompidou, President of the European Patent Office, at the public hearing on future patent policy in Europe;
• The EPO's reply to the Commission's questionnaire on the patent system in Europe; and
• The English and German versions of the brochure 'The London Agreement: European patents and the cost of translations' as PDF files.

"[...] The concept of mutual recognition of national patents appears unclear and problematic.

First, forcible legal grounds stand in the way of such a scheme:

• To allow the recognition in all EU Member States of national patents following an unspecified "approval" procedure by the EPO, an additional transfer of sovereign rights, going beyond the existing arrangement in the EPC, from EU Member States to the European Patent Organisation would be necessary. This would require a revision of the EPC, which all 31 EPC Contracting States would have to ratify even though only the group of EU Member States would be concerned.
• For mutual recognition at the level of the EU Member States - with or without participation of the EPO - an adequate legal instrument would also have to be found. Whether Community law provides a proper basis for this must be further studied.
• The centralised European patent granting procedure to which the Member States of the European Patent Organisation have agreed enables applicants who so wish to seek Europe-wide patent protection in 31 states, on the basis of one application, processed in one of the three official languages, after a full search and examination by highly specialised patent examiners. This centralised European route coexists with national granting or registration procedures. To devise an additional route for obtaining patent protection in Europe via a mutual recognition scheme would add considerably to the complexity of the patent system in Europe without bringing any tangible benefits for users of the patent system or the public.

Second, the functioning of such a scheme would not be satisfactory:

• For the time being, the patent offices of the 25 EU Member States carry out procedures ranging from simple registration of incoming applications to full search and examination. Even patent offices with search and examination systems differ considerably as to size and capacity. To ensure that national patents which were to be recognised Europe-wide would satisfy certain uniform standards, the EPO would have to carry out a complete re-examination of the applications. This would not lead to efficiency in the patent granting process in Europe."

"[...] The European Patent Office has focussed even more on quality in recent times. To that effect a comprehensive quality management system has been established which provides for an independent control of the work done by EPO examiners through the EPO's internal audit. [...]"

"[...] Patent protection must be affordable – in particular we should avoid unnecessary costs such as translation costs.

• The first breakthrough was achieved in 1973 when the three-language regime of the European Patent Convention was agreed: that solution
  • made daily work at the EPO feasible at all and
  • made the publication of all applications at 18 months a formidable vehicle for the dissemination – worldwide – of technological information, in three languages – English, German or French.
• For the post-grant phase, Europe must now move away from the requirement for full translation of all patents in all languages.
• And this second breakthrough is within reach: if the London Agreement enters into force, post-grant translation costs will be slashed, not least for the benefit of the "silent majority" I referred to a moment ago – those who have the potential to file more but refrain from doing so on account of prohibitive costs."

"[...] Legal security must be improved: an efficient, European court system must be established so that patent proprietors, their competitors, potential licensees or future infringers will all know that, if it comes to a dispute involving one of the 750 000 European patents granted to date by the EPO, one common court will rule.

We must put an end

• to parallel litigation involving the same European patent, and thus
• to the high costs, cross-border issues, forum shopping and legal uncertainty – due to diverging national decisions and long delays – which today distort the rules of the game.

Ladies and Gentlemen, the draft European Patent Litigation Agreement must be submitted to an intergovernmental conference as soon as possible. [...]"

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Issue 02/2006 of epi-Information Now On-Line.

"[...] We take the view that as part of the European Patent Organisation, the epi is part of a team with the EPO. However, as in any good team, there must be a balance. Applicants and their attorneys should not be criticised merely for using the system to protect what are valuable rights. We have in mind here the filing of divisional applications, which seem to be under attack, as is the right to argue for a properly defined invention in a patent claim, which after all is a definition, not a description. Also, as is evident from a document published on the EPO website, attorneys' fees (including those 'in-house') are mentioned in such a way that those fees are implied artificially to inflate the cost of obtaining a European patent. Your Council is questioning the basis on which the EPO figures are founded. Watch this space. [...]"

• A report of the 60th epi Council Meeting Salzburg, 15-16 May, 2006, including a commented list of Draft decisions, President's and Vice-Presidents' Report, as well as Treasurer's Report;
• A report of the epi Finance Committee;
• A report of the European Patent Practice Committee (EPPC);
• The epi response to the EU Commission's Questionnaire on the patent system in Europe;
• An article on renumbering the EPC Implementing Regulations;
• The Amicus Curiae Brief in re G01/05 (Divisional Application) on behalf of epi;
• A report of the Harmonisation Committee;
• A report on on-line filing with the EPO;
• An article on Requests for Postponement of Oral Proceedings before the Boards of Appeal by Mr. Chris Mercer (President of epi);
• An article on the European Patent Academy - an approach for the new member states by Mr. W. Torlot (EPO);
• An article on taking care of business (methods) - How the EPO today refuses inventions involving non-technical features - by Mr. A. Engelfriet; and
• An article on Italy, Final Decision in Appeal Against Pharma Patent Term Reduction, by Mr. F. de Benedetti.

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Tuesday, July 11, 2006

NL: Dutch Parliament Puts IPRED-2 into Question.

"Procedural questions could kill a proposed European Union directive aimed at fighting theft of products, patents and copyrights, after the Dutch Parliament raised jurisdictional concerns last week.

At issue is the planned EU directive on criminal measures aimed at ensuring the enforcement of intellectual property rights [COM(2006) 168 final]. The directive has provoked concerns among digital civil rights advocates, and now has hit a procedural snag.

The Dutch parliament last week wrote to Franco Frattini, EU Commissioner for Freedom, Security and Justice, that both the Senate and House of Representatives 'consider that the present proposal falls outside the powers of the community' and 'does not comply with the principle of subsidiarity and proportionality.' Subsidiarity is a fundamental principle of EU law asking that the EU acts only if actions of individual member states are insufficient.

'Both houses would appreciate receiving a reasoned response from the European Commission to the objections formulated by them in this letter,' wrote Senate President Yvonne Timmerman-Buck and the president of the House of Representatives, Frans Weisglas. [...]

A spokesperson from Frattini's cabinet told Intellectual Property Watch that 'there is a competence to introduce criminal sanctions in a directive according to a recent ruling of the European Court of Justice on environmental law.' Although, as a general rule, neither criminal law nor rules of criminal law fall within the Community's competence, that does not prevent Community legislature from taking measures that relate to criminal law if it is essential for combating serious environmental offences, the Commission wrote after this ruling. But the court also ruled that the respective criminal law measures had to be effective, proportionate and 'dissuasive.' [...]

Hester Meninga, spokesperson from the European Office of the Dutch Senate, said, 'The proposal is out of reach if you look at the goals that need to be realised: harmonisation of criminal law measures on the EU level is not as vital and essential nor advisable and wishful as presented by the European Commission in [its] proposal.'

Meninga listed three major points that resulted in this conclusion: First, it had not been established in the proposal 'that effective measures to combat piracy demand the expansion of the existing range of measures and sanctions under procedural law.' Second, there was 'no factual justification in the proposal of the European Commission that in the event of a major difference in penalties between the member states, the pirates or counterfeiters could operate from the country with the lowest maximum sentences and that this would seriously hinder effective protection of intellectual property.'

The third point was that the implementation of IPRED 1 was just considered by the House of Representatives of the States-General and provisions were made to include separate procedural provisions for intellectual property cases in the Code of Civil Procedure. [...]"

"[...] The judgment of 13 September 2005 in Case C-176/03 Commission v Council clarifies the distribution of powers between the first and third pillars as regards provisions of criminal law. This clarification removes any doubts about a question which has long been controversial. The Commission's aim with this Communication is to explain the conclusions to be drawn from it. A list of the instruments affected by the implications of the judgment is in the annex. One of the aims of this Communication is to suggest a method to correct the situation with regard to texts which were, in the light of the Court's ruling, not adopted on the proper legal basis. It also aims at setting the direction of the future use of the Commission's right of initiative.[...]"

"[...] The Court found that although 'as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community's competence', 'the last-mentioned finding does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective'.[...]"

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OHIM Changed Workflows.

"[...] In October 2005, the Management Committee of the Office decided that a more efficient design of workflows in IP core activities could be reached by introducing gradual changes in its workflows in order to reduce the number of examiners that had to intervene in a particular file, following the guiding 'one file, one examiner' principle. It was concluded that such new workflow would result in an overall increase in efficiency - just one examiner needs to become acquainted with each file - and the fact that the examiners have an overview of a file practically from the beginning to the end should be beneficial both for the Office staff and for the users of the Community Trade mark system. It was also concluded that such changes would require an adequate organisational structure.

As already published in OHIM website on the 22nd May 2006, the Management Committee took several decisions in April 2006 as regards the reorganisation process in the Core Business Departments, in particular, the creation of two new Core Business Departments, 'Trade Mark & Cancellation Department' and 'Trade Mark & Registry Department' [...].

In addition to their core trade mark competences, it was decided that the TMRD would deal with the trade mark and design registry and related databases as well as Euronice, whereas the TMCD would deal with trade mark and design data reception, capture and dispatch, trade mark cancellation proceedings as well as Madrid Protocol trade mark applications. Mr. Jakobsen and Mrs. Schmidt were appointed as Directors of TMRD and TMCD respectively.

As regards the starting date for both departments it was agreed that the exact date would depend on the final definition of the respective internal structures of the new departments and the successful implementation of the appropriate IT arrangements.

Following the definition of such internal structures, the selection of middle managers within the two Departments [...] and the completion of all the IT and logistical arrangements the Office is pleased to announce that the two new Departments are officially operational as from Monday, 3 July 2006. [...]"

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Monday, July 10, 2006

Another Way to Block the EPLA?

"[...] The Commission's legal services say that the EPLA interacts with parts of the acquis communautaire (the totality of existing EU law), in particular Regulation 44/2001 ('Brussels I Regulation' on jurisdiction) and Directive 2004/48 (intellectual property rights enforcement). There is a rule in the EU that if a certain field of law has already been regulated by the EU, the EU member states must not enter independently intointernational treaties that affect the same law because conflicts might arise sooner or later.

The Commission's position is shared by, among others, Klaus-Heiner Lehne, an influential conservative MEP (Member of the European Parliament), but not by the proponents of the EPLA. A number of them, including the Brussels-based lobbying organization EICTA, claim that the EPLA is perfectly in line with the acquis communautaire. And they stress that negotiations on the EPLA began years before the two aforementioned pieces of EU law took effect, claiming that the European Court of Justice (ECJ) has previously allowed EU member states to move forward on their own with an international treaty because the beginning of negotiations predated the affected parts of the acquis communautaire. There are some other theories as well.

The motivation on the part of the pro-EPLA movement is obvious: They want the EPLA to be ratified, and it's easier for them to get a number of countries (possibly even just two, such as Germany and another one) to do so directly. As soon as the EU is involved, certain decisions have to be taken at the EU level. And for decisions in the EU, you either need (depending on the type of decision) unanimity in the EU Council (i.e., the votes of all member states, which means that presently 1 out of 25 countries could block the decision) or a qualified majority (much more than 50% of the votes) in the Council plus the support of the European Parliament. The software patent directive failed because of the latter requirement: the EP voted it down. [...]"

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Locking Away WHOIS Data?

"[...] Should everybody who registers an Internet domain name be forced to publish his private address, email address and phone number on the Internet? A storm broke out over the question of the so-called Whois data at the meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) in Marrakesh last week. [...]

The open Whois has caused registrars in countries with strict data protection laws, for example those in the European Union, considerable headaches in recent years. European data protection officials have warned ICANN on several occasions to stay within EU data protection laws. Peter Schaar, Germany's federal commissioner for data protection and freedom of information and currently head of the Article 29 group of European data protection officials, reiterated this warning at the end of the week.

The question is anything but new to domain name registrars, but an ICANN task force of the Generic Name Supporting Organisation (GNSO) that was dedicated to the Whois question has struggled for nearly six years to reach consensus between registrars and users on the one side and trademark and intellectual property representatives on the other.

After the GNSO Council decided in a split vote earlier this year that the purpose of the Whois service was strictly technical, governments and stakeholders from ICANN's Intellectual Property Constituency and Business Constituency in ICANN joined forces in their claim that they must not be stripped of that source of information on domain name registrants. [...]"

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Sunday, July 09, 2006

DE: Writing on the Wall - the New Political Middle Class.

"[...] Wer in der CDU etwas werden und nach oben kommen will, den darf sein Beruf im Grunde nicht allzu sehr beanspruchen. Denn er benötigt ausgiebig Zeit für die Pflege der Seilschaften. Er braucht Zeit, um an den Info-Tischen auf den Marktplätzen zu stehen. Er muss über reichlich Zeit verfügen für die Ortsverbandsversammlungen, die Stadtratssitzung, die zahlreichen Kungelrunden und Kommissionen, für Feuerwehrfeste und Grillabende. Über ein solch üppiges Zeitbudget aber verfügen junge Bürger im wirklichen - nicht nur rhetorisch aufgeblasenen - Wettbewerb nicht. Sie sitzen am Notebook im ICE, wenn der christdemokratische Ortsverband tagt und zum gemütlichen Bierchen übergeht. Und sie wechseln häufig den Wohnort, statt sich in einer Stadt auf Lebenszeit niederzulassen und in der lokalen Honoratiorenschicht festzusetzen.

Dem modernen Bürgertum, kurzum, fehlt die Zeit für die traditionelle Honoratiorenpolitik. Die Organisation der CDU aber prämiert allein den Bekanntheitsgrad und die Verankerung vor Ort; sie belohnt die Vereinsmeierei, die aufwendige Ochsentour im Institutionengeflecht der Partei. Die grosse bürgerliche Partei der Republik löst dadurch sukzessive die Bindung zum hyperbetriebsamen Teil des Bürgertums. Und so schmilzt das Anhängerpotential der Union Woche zu Woche mehr zusammen; so wächst kontinuierlich die Gruppe, die sich hinter Westerwelle schart und von der Politik ungeduldig Tempo, Rigidität, Kompromisslosigkeit im ökonomischen Wandel fordert. Final und unumkehrbar muss das alles gewiss nicht sein. Gleichwohl: Das bürgerliche Lager in Deutschland gruppiert sich um - in einem Ausmass, das unzweifelhaft neu in der deutschen Nachkriegsgeschichte ist. [...]"

"[...] Those who want to get ahead to occupy higher positions in the Christian Democratic Union (CDU) should not be overly absorbed by a job as they need plenty of time for nursing insider relationships. They need time for serving at the party's info tables on the market squares. They need plenty of time for the meetings of the local chapter of the party, for the meeting of the town council, for numerous informal fiddling groups and commissions, for attending festivals of the local fire brigade, as well as for spending an evening at the barbecue grill. But in the real - not retorically overblown - competition, younger citizens do not have such ample time budget. When the local chapter of the CDU meets and moves to the casual part of the meeting drinking beer, they sit on the railroad in the ICE (Express-) train at their notebook computer. And they are moving frequently instead of settling down in a town for lifetime establishing themselves within the local tier of dignitaries.

In short, the modern middele class lacks time for traditional politics of dignitaries. But the organisation of the Christian Democratic Union (CDU) only rewards local publicity and rootedness. They only reward the efforts of lovers of club-life, the laborious formal step-by-step career within the network of institutions of the party. The big party of the middle class of the republic successively dissolves their ties to the hyper-active part of the middle class. This way, the potential of followers of the Christian Democratic Union melts away from week to week, the group congregating behind Mr. Westerwelle [leader of the Free Democratic Party, AHH] continuously growing and impatiently demanding acceleration, rigidity, and thoroughgoingness in the process of economic transformation. This is not necessarily final and irreversible. Nevertheless: The middle class in Germany regoups on a scale which undoubtedly is new within Germany's post-war history. [...]"

"[...] If the objective is to make Europe's economy more competitive, we don't need a system that makes litigation a more attractive option. We don't even need cheaper patents: if SMEs have problems with the patent system, it's not because of their own access to patents but due to the patents others can use against them. What we really need is fewer patents, and I don't see a strategy on the part of the Commission to counter the trend of patent inflation. [...]"

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Thursday, July 06, 2006

UK: First Issue of "Patent Office Annual Review".

"[...] This is the first Patent Office Annual Review and is designed to supplement the formal Annual Report (which will cover the financial year 2005/2006). The review provides a narrative covering some of our activities in greater detail than is possible in the Annual Report, and includes the Facts and Figures which provide the statistical overview of 2005. In short, the Review provides an accessible picture of what we have done in relation to IP and innovation.

As you will see from reading the Review we have engaged across a wide range of innovation related issues, wider than in the past. This is not by chance. It is a direct result of the implications for UK Business of the global knowledge based economy in which economic competitiveness depends on creativity and innovation.

Intellectual property is a key tool and driver in this new economy. Equally the Patent Office has to change to meet the new challenges and provide Government, Researchers and Business with the services that will support them in turning their creativity into successful innovative services and products. We have called this programme ?A Patent Office for the 21st Century? and this Review opens by explaining that concept in greater detail.

This is not change for change?s sake. As you will read in the Review all of our activities are directed at helping to create the conditions for business success and help business meet the challenges of globalisation. We do not do this alone. The stories in this Review show how we have worked with the IP professions, the private sector, and colleagues in the DTI and other parts of Government to provide a more comprehensive programme of support and encouragement. I believe the year has been a success. I enjoyed reading this Review and I?m sure that you will as well. [..]"

• A Patent Office for the 21st Century;
• The Trade Marks Programme (TMP);
• Patents Electronic Case System (PECS);
• Awarding Winning Customer Service 5th time Charter Mark Winners;
• What you say about us - the results of the Patent Office 2005 Customer survey;
• Early Views Prove Valuable to Customers;
• Preliminary Indication SAS - Search and Advisory Service;
• Customer Consultation Designed to Reduce Bureaucracy;
• CREATE for the future;
• The Lambert Model Collaboration Agreements - Saving time and cost;
• THINK kit - Accessing the Business People of Tomorrow;
• IP Crime - The Patent Office Enforcement Team;
• What is the Key? - Raising Awareness of IP in the Business Sector;
• Taking the lead in the European and International IP arena UK Presidency of the European Union 2005 - an IP Perspective;
• Negotiations to Amend Commission Regulation (EC) No 2869/95 on the fees payable to Office for Harmonization in the International market;
• The European Patent Organisation: Strategy Debate; and
• Knowledge Sharing on a Global Scale - IP International Co-Operation.

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Wednesday, July 05, 2006

DK-PTO: "Nordisk Patent Institut en realitet".

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FFII Mission Statement Revised: The Good, The Bad, And The Ugly.

"There are two kinds of people. Those who get it, and those don't.

[...]

So I come to the point of my story, which is this. People often ask, "what defines the FFII?" The answers one hears are many. We stand for freedoms of certain types, but also rules. We stand for copyright, definitely, unless it's the Disneyesque copyright that lasts five hundred years. We stand against software patents, unconditionally, but we have nothing against patents in other domains. We support open standards but we don't actually define them. We represent open source developers and we also represent closed-source developers. We're agnostic as to how people turn bits into cents so long as they don't cheat.

So here's my answer. The FFII represents those who get it. We are the unseen future, the generation of programmers, engineers, businessmen, writers, artists, journalists, lawyers, politicians, and the other individuals and firms who have staked their future in a fair digital playing field. We are the Digital Majority.

Compromise is not an option. There is no acceptable level of friction any more than there is an acceptable level of cancer. We spend our lives removing friction, eliminating transaction costs, competing ruthlessly to be better, faster, more efficient. When someone comes along and tells us, 'this new law is going to turn you all into my serfs', and gets a massive, concerted, and well-organised hostile reaction. I mean, how stupid do you have to be? [...]"

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Monday, July 03, 2006

EU Commission on Results of Patent Consultation: "Preliminary Findings: Issues for Debate".

"[...] Basic principles which need to guide the patent system in Europe are:

• patent system must provide an incentive for innovation provided that patentability criteria are rigorously respected
• it must ensure the diffusion of scientific knowledge and technologies by an efficient, transparent and complete publication of patent documentation
• it must facilitate the transfer of technology
• it must be available to all players on the market
• it must offer legal certainty to the patentee and the users

Stakeholders are first and foremost concerned about maintaining and improving patent quality in Europe in order to avoid the shortcomings of some patent offices such as the USPTO. Industry is unanimous that innovation and competitiveness do not depend on the number of patents granted every year but on their quality and on the level of legal certainty which they provide. Cooperation with the EPO is considered crucial in this respect.

Furthermore, information and awareness activities must be enhanced so that industry and citizens are better informed of the value of Intellectual Property Rights and of how to use them. Industry is also concerned about the inadequate regulatory framework for technology transfer in Europe.

An idea of setting up an 'advisory body', which would give opinions or recommendations on legal issues concerning patents, was presented by the Finnish government is its submission. This body could be, for example, a part of the European patent organisation and would help resolving diverging national interpretations on the scope of the European patents. One idea, to leave patent litigation at first instance to national courts, is popular with other stakeholders
(especially the smaller business and individuals who are concerned about maintaining judicial proximity in the future patent jurisdiction).

Although there is widespread preference for the Community Patent as a way forward, stakeholders do not wish to have one at any price and in particular not on the basis of the key elements of the 2003 CPA. What they are looking for is an improvement over the current situation, a truly unitary high quality patent. If this cannot be achieved quickly and without major political compromises affecting the usefulness of the final solutions, then some stakeholders go as far as urging the Commission to withdraw its proposal and concentrate its resources on other issues, while many point to the EPLA as a possible solution to the current shortcomings.

Some stakeholders (many SME associations and organisations) put forward the idea of setting up regulatory framework for mediation as a means of alternative dispute resolution in patent cases, with the exclusion of issues of validity of a granted patent. This suggestion merits further reflection and its viability should be analysed.

Whatever the outcome of efforts on the Community Patent, stakeholders look favourably at EPLA as lack of uniform litigation for European Patents is the main obstacle to an efficient patent system in Europe."

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Saturday, July 01, 2006

DE: 2005 Annual Report of the German Patent And Trade Mark Office Released.

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